Costello v. O'Toole

Appellate Division of the Supreme Court of New York

Costello v. O'Toole

149 A.D.2d 396, 539 N.Y.S.2d 501, 1989 N.Y. App. Div. LEXIS 4428

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 3, 1989

StatusPublished

Cited by1 cases

This text of 149 A.D.2d 396 (Costello v. O'Toole) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Costello v. O'Toole, 149 A.D.2d 396, 539 N.Y.S.2d 501, 1989 N.Y. App. Div. LEXIS 4428 (N.Y. Ct. App. 1989).

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Opinion

— In an action, inter alia, to declare a certain deed dated November 6, 1970, void (see, RPAPL art 15; cf., CPLR 3001), the plaintiff appeals from a judgment of the Supreme Court, Kings County (I. Aronin, J.), entered December 2, 1987, which, after a nonjury trial, is in favor of the defendants and against her dismissing the complaint.

Ordered that the judgment is modified, by (1) adding thereto a provision declaring that the deed dated November 6, 1970, is valid and (2) adding to the fifth decretal paragraph thereof, before the phrase "dismissing the complaint,” the words "otherwise”; as so modified, the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

[397]*397We discern no basis for disturbing the trial court’s determination (see, CPLR 4102 [c]) that the plaintiff waived her right (see, CPLR 4101 [2]) to a jury trial. However, although the record amply supports the trial court’s determination that the 1970 deed, by which the subject premises were conveyed from the plaintiff to the defendant O’Toole and his wife, now deceased, was valid, it should, however, have made a declaration to that effect rather than dismissing the complaint in its entirety (see, CPLR 3001; cf., RPAPL 1521; Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901; Orrino v Norbon Homes, 35 AD2d 732). We modify the judgment accordingly.

We have examined the plaintiff’s remaining contentions and find them to be without merit. Mollen, P. J., Kooper, Sullivan and Harwood, JJ., concur.

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— In an action, inter alia, to declare a certain deed dated November 6, 1970, void (see, RPAPL art 15; cf., CPLR 3001), the plaintiff appeals from a judgment of the Supreme Court, Kings County (I. Aronin, J.), entered December 2, 1987, which, after a nonjury trial, is in favor of the defendants and against her dismissing the complaint.

Ordered that the judgment is modified, by (1) adding thereto a provision declaring that the deed dated November 6, 1970, is valid and (2) adding to the fifth decretal paragraph thereof, before the phrase "dismissing the complaint,” the words "otherwise”; as so modified, the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

[397]*397We discern no basis for disturbing the trial court’s determination (see, CPLR 4102 [c]) that the plaintiff waived her right (see, CPLR 4101 [2]) to a jury trial. However, although the record amply supports the trial court’s determination that the 1970 deed, by which the subject premises were conveyed from the plaintiff to the defendant O’Toole and his wife, now deceased, was valid, it should, however, have made a declaration to that effect rather than dismissing the complaint in its entirety (see, CPLR 3001; cf., RPAPL 1521; Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901; Orrino v Norbon Homes, 35 AD2d 732). We modify the judgment accordingly.

We have examined the plaintiff’s remaining contentions and find them to be without merit. Mollen, P. J., Kooper, Sullivan and Harwood, JJ., concur.

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Bluebook (online)

149 A.D.2d 396, 539 N.Y.S.2d 501, 1989 N.Y. App. Div. LEXIS 4428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/costello-v-otoole-nyappdiv-1989.

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